ALL FOR OHIO BLOG

January 12, 2016January 25, 2016

Five Things Businesses Should Know About State of Ohio v. Sierra Club

By Charles Willoughby on January 12, 2016

On Christmas Eve, five state and local Chambers of Commerce and the U.S. Chamber filed an amicus brief in support of Ohio businesses in State of Ohio v. Sierra Club. The case stems from a challenge to the EPA’s redesignation of the greater Cincinnati area as “in attainment” with the Clean Air Act’s national ambient air quality standards (NAAQS) for fine particulate matter (abbreviated “PM2.5”).

The NAAQS for PM2.5 were first issued by the U.S. EPA in 1997. PM2.5 refers to “a mixture of microscopic solids and liquid droplets suspended in air” – in other words, organic compounds, metals, soil, dust, and allergens found in the air. EPA originally marked greater Cincinnati and other communities nationwide in “nonattainment” for the 1997 PM2.5­ standards. With that label brings stringent permitting rules and costly air quality controls. However, by 2010, after years of investing in pollution controls, the greater Cincinnati area had achieved the federal air quality standards. And in December 2011, the U.S. EPA redesignated the greater Cincinnati area as “attainment.”

The Sierra Club challenged the decision. They wanted the greater Cincinnati area to maintain higher pollution control restrictions even though they had already met the federal air quality standards. In particular, they argued that the Clean Air Act requires states to require the use of all “reasonably available control measures [RACM]” in nonattainment areas, including “reasonably available control technology [RACT],” even if the area doesn’t need RACM/RACT to achieve the federal standards. Unfortunately, the Sixth Circuit Court of Appeals decided in favor of the Sierra Club’s argument.

Since the greater Cincinnati area is home to many Ohio businesses and a center for economic activity that is directly affected by the Sixth Circuit’s decision, we have compiled a list of what our members should know and how the decision in this case would impact the broader business community:

The State of Ohio is currently asking the U.S. Supreme Court to review the Sixth Circuit Court of Appeals decision, which conflicts with decisions made on the same issue in several other circuit courts.

This case ignores the intent of the 1970 Clean Air Act — to reduce actual air emissions. Instead, the Sierra Club is arguing it doesn’t matter if an area reduces emissions; it only matters that they reduce emissions the “right” way, even if that means implementing unnecessary, burdensome, and expensive legal requirements.

If the Supreme Court chooses not to hear State of Ohio vs. Sierra Club, it won’t matter if areas like Cincinnati or Cleveland reduce their emissions; it will only matter if they did it the “right” way.

There are hundreds of “non-attainment” areas nationwide watching this case that are struggling to meet national air quality standards. A good decision by the U.S. Supreme Court could protect the business community and taxpayers from paying billions of dollars in unnecessary regulatory costs, and missing development opportunities, in return for a perceived (not actual) environmental benefit.

The onslaught of more stringent EPA regulations, like the Clean Power Plan and 70ppb ozone standard, will require states with “non-attainment” areas to submit plans with specific actions that will lead toward meeting those goals. In future years, no matter when or how states reduce emissions, the massive financial obligations and restrictions on economic development should be lifted. American businesses need a path to freedom from the over-regulation era that will be the legacy of the Obama administration.

A robust manufacturing sector is a key for Ohio’s economic engine, and those businesses will be most affected by the outcome of this case. Environmental regulations should be based on sound science and balance between our need to protect the environment and adverse economic impacts. More cumbersome regulations on electricity generation, industrial and commercial manufacturing and transportation restrict our GDP and our ability to compete in a global market. If the Sierra Club wins the day against the State of Ohio, economic growth in Ohio will be significantly reduced, permanently.